Recanted Deposition Quote Raises Questions in Finn Case
By Mark Morris
Kansas City Star
September 1, 2012
The scramble to manage a recanted quote attributed to Kansas City’s Catholic bishop has added a wrinkle to preparations for his trial later this month, lawyers said Friday.
Julie Creech, the computer systems manager for the Diocese of Kansas City-St. Joseph, now contends that “Sometimes boys will be boys” no longer is her recollection of how Bishop Robert Finn responded in December 2010 to her concerns about how the church was managing the Rev. Shawn Ratigan and child pornography issues.
But experts said she has few real options for expunging the potentially damaging observation from her Aug. 17 deposition in a related civil case against the priest, the bishop and the diocese. And she could have to explain the statement again if she testifies at Finn’s trial for allegedly failing to report child abuse.
Finn and the diocese are scheduled to go to trial Sept. 24 on misdemeanor charges of failing to tell authorities that they suspected Ratigan of abusing children. State prosecutors have identified Creech as a witness in their case.
Unlike an elementary school playground, there are no take-backs in depositions, said Tony Miller, a criminal defense lawyer and former assistant Jackson County prosecutor.
“It’s not that simple,” Miller said. “This is not going to go away. They can try to explain it away all they want.”
The issue exploded Thursday when a lawyer representing a girl and her parents filed pages from Creech’s deposition with a motion in their civil case against the church. In her deposition, Creech recounted a meeting with Finn about the diocese’s response to the discovery of hundreds of lewd photographs of young girls on Ratigan’s laptop.
“He did indicate that, you know, sometimes priests do things that they shouldn’t, and he said, you know, he said, ‘Sometimes boys will be boys,’?” Creech testified.
In a written statement Thursday night, Creech’s lawyer, John Gromowsky, did not contest that she made the comment. He only said she was mistaken. The statement also gave no explanation for why Creech’s testimony differed from her current memories of the period.
Gromowsky did say his client hoped to “acknowledge and correct her mistaken testimony” when she received a draft of the deposition in the coming weeks. But other attorneys offered little hope that she would be able to substantially alter a material piece of testimony that she uttered under oath in the presence of lawyers and a court reporter.
Corrections to depositions usually are limited to punctuation, grammar or instances in which the court reporter heard something incorrectly, said John Osgood, a former federal prosecutor who now works as a criminal defense lawyer.
Such a correction could legitimately be made if a witness said “Beijing,” but the court reporter instead entered “beige” in the transcript, for example.
She could prepare a sworn statement or submit to more deposition questions to clarify her statement, but that simply would highlight a “prior inconsistent statement,” which is prime material for attacking witness credibility.
“She can’t say, ‘I want to clarify the deposition or change the deposition,’?” Osgood said.
Witnesses regularly contradict and recant previous sworn testimony in depositions or before juries and grand juries. The most famous instances are in high-profile death penalty cases, such as that of Missouri’s Joseph Amrine. His vindication in 2003 came after three witnesses recanted their trial testimony.
But scarcely a day goes by in most courthouses without a lawyer asking a witness, “Would reviewing your previous testimony refresh your recollection?” Such moments happen more regularly in civil, rather than criminal, cases, said Mike Yonke, a Kansas City lawyer who handles both varieties.
“You see more of this on the civil side than the criminal side because there are more depositions,” Yonke said. “Unfortunately, while someone’s liberty is at stake in a criminal case, the stakes seem to be higher when they’re fighting over money.”
Creech’s deposition also would not automatically be admissible in Finn’s misdemeanor trial, the lawyers cautioned.
The statement was taken in a separate civil proceeding and, because the bishop’s criminal lawyers were not there to cross-examine Creech, would be considered hearsay evidence in the misdemeanor case. The fact that Finn’s civil lawyers were present likely would throw the deposition into a legal gray area, leaving its admission up to the trial judge, Osgood said.
Were Creech a minor witness in the case, her deposition likely would not be of much interest. But according to a fact-finding report commissioned by the church, she is the diocesan employee who had the most contact with the Ratigan photographs and made the only copies of them that survived the laptop’s subsequent destruction. She also advised one of Finn’s top subordinates to call police immediately.
But her credibility could come under fire if she has given conflicting testimony about her contacts with the bishop in previous depositions or before state and federal grand juries. But even then, a lawyer would face some tricky problems before moving it into evidence to challenge her credibility, Yonke said.
Prosecutors generally aren’t permitted to impeach their own witnesses, Yonke noted. Defense lawyers might not want to put such a highly charged statement in the minds of jurors.
But Yonke said he’s pretty sure someone will try.
“That is juicy stuff,” Yonke said. “I’d want that in front of the jury. That’s brutal.”
To reach Mark Morris, call 816-234-4310 or send email to firstname.lastname@example.org